IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
                         CHANDIGARH

                                                   CWP No.19379 of 2011
                                             Date of decision : 17.10.2011


Dipinpreet Singh and others...                                .... Petitioners

                                    Versus

State of Punjab and others                                  ...Respondents

CORAM : HON'BLE MR.JUSTICE SATISH KUMAR MITTAL

             HON'BLE MR.JUSTICE PARAMJEET SINGH

Present:     Mr.Sumeet Mahajan, Senior Advocate with
             Mr.Sham Lal Bhalla, Advocate

             for the petitioners.

Paramjeet Singh, J.

The petitioner No.3 M/s Ansal Properties & Infrastructure Ltd and two others have filed the instant writ petition under Article 226/227 of the Constitution of India for issuance of a writ of mandamus for shifting Mahindra & Mahindra Ltd., Swaraj Division (earlier known as Swaraj Combine Factory), Sector 92, Alpha, Mohali, (hereinafter to be referred as 'the Industry') and for its sealing till it is shifted and for providing infrastructure like Storm Water Drainage System and Sewerage System and execute a Master Plan for Storm Water Drainage system along 200 feet wide Road dividing Sectors 114 and 115 , Mohali.

Before we examine the contentions of the petitioners, we think it appropriate to say about the environment and notice some of the important decisions, indicating the approach of Courts in India concerning environment and development.

Industrial Revolution of latter 18th and early 19th century, 20th and 21st century scientific and technological revolutions dramatically increased humanity's need for natural resources and its pressure on environment. This impact has been negative. First half of 20th century raised fundamental question about the future environment. Could we support rapidly growing population? First the question was debated in scientific circles, but soon caught the attention of the public. This concern gained momentum in 1960s and culminated in convening of the United Nations conference on Human environment in Stockholm in 1972.{A Commitment to The Future Sustainable Development and Environment Protection" by Mostafa K. Tabu published by United Nations Environment Programme}. The concept of Sustainable development is not new. It came to be known as early as in 1972 in the Stockholm declaration that:

"Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well being and he bears a solemn responsibility to protect and improve the environment for present and future generation."

Thereafter in 1987 United Nations released Burndtland Report which defines Sustainable development as "development which meets the needs of the present without compromising the ability of future generations to meet their own needs."

"Brundtland Report" which had been further discussed under agenda 21 of UN Conference on Environment and Development held in June 1992 at Rio de Janeiro, Brazil. Basic principles of sustainable development described in Brundtland Report are:

a) Inter-Generational Equity: b) The Precautionary Principle

c) Polluter Pays Principle:

We would like to say few words about environment too. The courts in India are very much concerned about the environment. No one can turn blind eye to environment. Ecological equilibrium is must. Balanced preserving of the environment and promoting development is a necessity. They are fundamentally interrelated. The environment cannot be an entity without human activity. The economy of a nation grows with industrialization. The economic factors do not block the attainment of desirable and sustainable future, rather they favour it. The advantages are multiplied by industrialization as it promotes both better resource management and more sustainable development.

The Supreme Court and the High Courts have played an important role in preserving environment and had applied the doctrine of sustainable development. Parliament has enacted various laws to deal with the problems of environmental degradation.

The Calcutta High Court in the case People United for Better Living in Calcutta Public and another vs. State of West Bengal and ors. AIR 1993 CALCUTTA 215, had the occasion to deal with a similar problem in relation to the wetland and the learned Single Judge (U.C.Banerjee, J, as he then was) came to the conclusion:

"There is no manner of doubt that this issue of environmental degradation cannot but be termed to be a social problem and considering the growing awareness and considering the impact of this problem on the society in regard thereto, in my view, Law Courts should also rise upto the occasion to deal with the situation as it demands in the CWP No.19379 of 2011 4 present day context: Law Courts have a social duty since it is a part of the society and as such, must always function having due regard to the present day problems which the society faces. It is now a well-settled principle of law that socio-economic condition of the country cannot be ignored by a Court of law. It is now a well-settled principle of law that while dealing with the matter, the social problems shall have to be dealt with in the way and in the manner it calls for, since benefit to the society ought to be the prime consideration of the Law Courts and ecological imbalance being a social problem ought to be decided by a court of law so that the society may thrive and prosper without any affection".

The learned Judge had indicated in the said judgment that there should be a proper balance between the protection of environment and the development process : The society shall have to prosper, but not at the cost of the environment and in the similar vein, the environment shall have to be protected but not at the cost of the development of the society there shall have to be both development and proper environment and as such, a balance has to be found out and administrative actions ought to proceed in accordance therewith and not dehors the same.

In the case Indian Council for Enviro- Legal Action vs. Union of India and Ors. 1996(5) SCC 281, Supreme Court had the occasion to deal with the question of protection of 6000 kms long coast line of India and the Court emphasised that it would be the duty and responsibility of the coastal states and Union Territories in which the stretches exist, to see that the notifications issued under the provisions CWP No.19379 of 2011 5 of Environment (Protection) Rules as well as the notifications issued, declaring the coastal stretches should be properly and duly implemented and the various restrictions on the setting up and expansion of industries, operation or process etc. in the Regulation Zone should be strictly enforced. The Court had indicated that with a view to protect the ecological balance in the coastal areas, notifications having been issued by the Central Government, there ought not to be any violation and the prohibited activities should not be allowed to come up within the area declared as CRZ notification. The Court also emphasised that no activities which would ultimately lead to unscientific and unsustainable development and ecological destruction should at all be allowed and the Courts must scrupulously try to protect the ecology and environment and should shoulder greater responsibility of which the Court can have closer awareness and easy monitoring.

Supreme Court had applied the doctrine of Sustainable Development in Vellore Citizens' Welfare Forum v. Union of India, 1996(5) SCC 647. In this case, a dispute arose over some tanneries in the State of Tamil Nadu. These tanneries were discharging effluents in the river Palar, which is the main source of drinking water in the State. The Hon'ble Supreme Court held that:

"We have no hesitation in holding that the 'precautionary principle' and 'polluter pays principle' are part of the environmental law of India."

The Supreme Court has in many cases tried to keep the balance between ecology and development. In Rural Litigation and Entitlement Kendra Dehradun v. State of Uttar Pradesh, A1R 1988 SC 2187 known as Doon Valleycase, a dispute arose over mining in the CWP No.19379 of 2011 6 hilly areas. The Supreme Court after investigation ordered the stopping of mining work and held:

"This would undoubtedly cause hardship to them, but it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affection of air, water and environment."

In M.C. Mehta v. Union of India, 1992 (3) SCC 256, the Supreme Court issued directions towards the closing of mechanical stone crushing activities in and around Delhi, which was declared by World Health Organisation as the third most polluted city in the world. Keeping in view the importance of stone crushing and issued directions for allotment of sites in the new 'crushing zone' set up at village Pali in the State of Haryana. Thus it is quite obvious that the Courts give equal importance to both ecology and development while dealing with the cases of environmental degradation.

The catena of judgments suggests to maintain balance between development, ecology and environment. The Hon'ble Supreme Court considered similar aspect in Goa Foundation, Goa Vs Diksha Holdings Pvt. Ltd. & Ors. AIR 2001 SC 184and Research Foundation for Science Technology National Research Policy Versus Union Of India 2005(10) SCC 510 and other cases.

Keeping in view the observations made in the aforesaid cases, we, now, examine the case in hand and issues involved to find out:

i) Whether there exists any authentic data or material before us for coming to a conclusion that the Industry in question would upset the environment and ecological balance of the area?

ii) Whether the Industry in question is running in violation of the Provision of Water (Prevention & Control of Pollution) Act, 1974?

We have heard the learned Senior Counsel Shri Sumeet Mahajan, for the petitioners.

The main thrust of arguments of the learned counsel for the petitioners is that water pollution is being caused by the industry. So it requires shifting and sealing. A company called M/s Ansal Township and Project Ltd. merged into Petitioner No 3. That company entered into an agreement dated 3.7.2006 (Annexure P-2) with the respondents No.1 to 4. It is one of the terms and conditions of the agreement that State Government shall not allow polluting industries in the periphery of the project area (upto 500 meters from project boundary). The official respondents are not complying with terms of agreement. As per terms of the agreement the industry should be shifted. The said term and condition and agreement dated 3.7.2006 reads as under:

"Clause 5 (iii) (J)- The State Govt. shall not allow Polluting Industries in the periphery (upto 500 mtrs from project boundary) of the project area."

The contention of the petitioners is not sustainable on the face of it. It is no where mentioned in the agreement that already existing industries are to be relocated/ shifted. The Industry is in existence much prior to agreement dated 3.7.2006. The counsel for the petitioners admits existence of the factory since early 70's or around that CWP No.19379 of 2011 8 period. Petitioners were fully aware about the existence of the Industry. They should have refrained from accepting the proposal for the project. Now petitioners cannot say that they are investing huge amount, but polluting industry is in existence within 500 meters from the project boundary contrary to the terms of agreement. They entered into an agreement with their eyes open and was fully aware of the existence of the industry. Now he cannot say that the industry should be shifted.

The Learned counsel for the petitioners further contended that although said Industry is in existence since 1972 much prior to the agreement of petitioner No 3 but it is a polluting unit. Initially it was known as Swaraj Combine Factory. Thereafter, it was taken over by M/s Mahindra & Mahindra Ltd, as a Swaraj Division. Now it is known as Mahindra & Mahindra Ltd. Swaraj Division, Phase IV, Industrial Area, SAS, Nagar, Mohali. Mahindra &Mahindra, is one of the world's largest tractor manufacturer and Swaraj Division is its manufacturing unit situated in Mohali. The Industry manufactures about 100 tractors daily, 300 combines per year and 300 forklifts per year and also manufactures various spare parts of tractors, combines and forklifts. The Industry is spread over an area of about 32 acres. Its manufacturing processes involve surface treatment, heat treatment and paint, resultantly causes immense water and air pollution. He made reference to the photographs (Annexure P-7) annexed with the writ petition. So, counsel for the petitioners argued that industry is required to be shifted and sealed.

The Learned counsel for petitioners failed to substantiate the contention raised by him. There is no authentic material and cogent evidence available on the record from which it could be concluded that CWP No.19379 of 2011 9 the industry is causing air and water pollution resultant degradation of the environment in the surroundings of the project. There is no data on record such as Local Environment Audit Report, the Environment Assessment Report or any other material to prove the pollution caused by the industry in question. We do not think that merely on the basis of photographs or large production by the industry per day, a direction deserves to be issued for relocation/ shifting and stopping the activities of the industry. The concern and fears of the petitioners regarding mother Earth are welcome. For each major concern there are many anxieties. This case is based on pessimistic assumptions. The pessimistic assumptions extrapolated into future leads to divergent predictions. Possibilities for exceed the actualities. So contention of the petitioners that industry is causing in pollution is unfounded and hence rejected.

We can take judicial notice that State of Punjab is predominately agricultural and farm equipments are in dire need. They are being produced in the Industry. Farm machination helps in effective utilization of inputs to increase the productivity and labour. The ancillary and support industries also grow with the industry. Country witnessed unprecedented growth in agriculture, which helped India to graduate from hunger to self sufficiency in food grains. It is popularly known as "Green Revolution". The Industry is running since early 70's and is in continuous production. It is providing equipments for the agricultural needs of the State of Punjab and the Country. The agricultural production with new technology provided by this Industry is also helping in the agricultural progress of the State of Punjab and had saved to major extent paddy and wheat straw burning so is preventing CWP No.19379 of 2011 10 degradation of environment. Many types of ultra safe devices and appliances are being produced by the industry. The industry is providing opportunities of employment and imparting practical training to the new entrants in the field of Mechanical Engineering and to the students of management.

We cannot appreciate the contentions of Sh. Mahajan counsel for petitioners for shifting/ relocation and sealing of the industry for reasons that it would result in loss of employment to significant proportion of the workers, skilled as well unskilled, employed in the industry. That may leads to widespread violent street protests.

We can say that development and environment issue is a classic conflict between competing priorities - clean air and water to protect public health versus job for workers. Relocating industry will result in relocating workers and supporting sectors like grocery shops and tea stalls. The relocation results into unorganized employment. If the workers are not relocated with industry, they will disperse in search of alternative earning opportunities for survival of their families. The petitioners are completely silent about the effect of relocation and effect of depriving anyone of job, is an inordinate burden and stress on workers and their families. The loss of employment would create many more problems like loss of dignity, increased tension in households and wife beating, loss of education of children, health, borrowings and debt, cutting down on food , child labour and women taking up casual and part time work etc. Learned counsel for the petitioner contended that the industry is violating the terms of consent granted to the industry under the Water Act. If the industry is violating the terms of the 'consent', the CWP No.19379 of 2011 11 petitioners could bring these facts to the notice of competent authorities under the anti pollution laws; the authority can withdraw 'consent'. The petitioners may file appeal under Section 48 of the Water Act. The petitioners have not availed the alternative remedy of appeal as permissible under the provisions of Water Act, 1974 and Air Act, 1987. It is common knowledge that such petitions are being filed often with oblique ulterior motives. We are of the considered opinion that there is absolutely no merit in this contention. Petitioners No.1 and 2 appear to be tools in the hands of petitioner No.3 . The 'Court of Justice' should not be polluted by such unscrupulous litigants by restoring to extra ordinary jurisdiction.

Even if it is presumed that industry is violating the terms of consent. There is statutory weaponry to finish the foe of pollution. The legislature had provided sufficient safe guards under the Environment Protection Act, 1986, Water (Prevention & Control of Pollution) Act, 1974 and Air Pollution Act, 1987. Those authorities empowered under the Environmental Laws can be approached for redressal of such grievances. These authorities have sufficient powers to check industrial effluents. Such authorities can even restrain and stay the operation of industry on evaluation of the impact of pollution caused by the industry on the environment. This can be assessed by the Committee of Experts. There is no authentic data available with the writ petition in this regard whether respondent No.5 is causing pollution beyond its limits or is working within limits of 'consent' granted to the said industry. The principle of sustainable development and environment protection is the order of the day. Without industrialization, the country cannot progress. However, it is also the duty of the industry that they should work within CWP No.19379 of 2011 12 the norms set for pollution and adhere to the terms of consent granted to them. In a country like India, meeting the basic need of the population is also one of the issues. Needs of the poorest strata of the mankind and their security are also to be kept in view. If industries are not allowed to run, it will create unemployment which will ultimately result into starving not only the individuals but also the families which are dependent upon them. In fact, this industry is source of employment to the residents of the area and others. Industrialization itself ensures a good environment as all the equipments are required to protect the environment and make it pollution free are also produced in the industry. Nobody can dispute the need of protecting the environment. After all, people are entitled to pure air and water. The maintenance and conservation of ecological is also one of the basic needs. We cannot over-look that protection of the environment is subservient to industrialization. Industrialization not only creates wealth and opportunities to large part of the population but is also necessary for preserving environment.

Unless we are industrialized, we will never get respect in the community of Nations. We will not be able to promote the welfare of our people as we will not be able to generate wealth, employment opportunities, as is stated in Article 38 of the Constitution of India . Articles 39, 41 and 43 of the Constitution of India being Directive Principles provide for right to adequate means of livelihood, right to work, to education and guarantees living wages for workers. Without industrialization, our people shall not be able to get work, education, employment benefits and other public assistances as are enshrined in the Constitution of India. All this require huge resources and funds which CWP No.19379 of 2011 13 can be generated by industries. The massive unemployment can also be eradicated by industrialization.

So far as the contention regarding providing of Storm Water System and Sewerage System is concerned, petitioners had not even impleaded the Public Health Department and the Punjab Water Supply and Sewerage Board as respondents. They can represent in this regard to the authorities. Representations (Annexures P-10 and P-11) attached with the writ petition are of the year 2008, and it appears that petitioner No.3 and others are not keen to pursue said representations for the reasons best known to them. We can infer that petitioners are not serious about the Sewerage System and Storm Water and Drainage System. In view of the above, we are of the opinion that the present writ petition is devoid of merit.

Dismissed in limine.

No order as to costs.

( PARAMJEET SINGH ) JUDGE ( SATISH KUMAR MITTAL ) JUDGE 17.10.2011 sd